Federal agents believe they have gathered sufficient evidence to charge Hunter Biden with crimes, according to a Washington Post report. The purported offenses involve tax violations and lying about drug use on a form to buy a gun.
But what happens next? If Biden is not charged, we will undoubtably hear from those who believe the fix is in, and that the only logical conclusion is that President Joe Biden pressured prosecutors to let his son off easy. Or that prosecutors did so on their own accord to curry favor with the president.
If Biden is not charged, we will undoubtably hear from those who believe the fix is in.
The truth is not so simple. Just because investigating agents have found evidence they believe is sufficient to file charges does not mean that prosecutors will or should seek an indictment. The decision of whether to charge the younger Biden will be made by David C. Weiss, the U.S. attorney in Delaware who was appointed by former President Donald Trump. Unlike other U.S. attorneys, he has not been replaced by Biden. Attorney General Merrick Garland has also promised not to interfere in Weiss’ decision. According to Garland, “We put the investigation in the hands of a Trump appointee from the previous administration.”
Regardless of who is making the decision, charges may not be imminent. First, it is important to differentiate the legal bar for charges and the standards required by Justice Department policy. Legally, an indictment may be filed if a grand jury finds probable cause. (Probable cause is defined as reasonable grounds to believe that the person has committed a crime.) But the Justice Department’s Principles of Federal Prosecution require more. That policy manual states that prosecutors should seek indictments only if they believe the evidence is sufficient to obtain and sustain a conviction. That is a much higher standard because the burden of proof at trial is guilt beyond a reasonable doubt.
That difference can be particularly important in a tax case, one of the rare offenses that require the highest standard of intent: willfulness. In such cases, it is not enough to prove an individual knowingly engaged in prohibited conduct. Prosecutors must also prove that the person knew their conduct was illegal. This is a different standard from the normal rule that ignorance of the law is no excuse. The reason for the higher showing of mens rea, or criminal intent, is to prevent someone from being convicted of a crime without sufficient notice of what the law requires.
The seminal case in this area is the 1991 decision in United States v. Cheek, in which the U.S. Supreme Court overturned the conviction of a tax protester who had contended income tax laws were unconstitutional. The defendant in that case was an airline pilot who had attended numerous seminars on how to avoid paying income taxes. The court found that the government had failed to prove a willful violation because there was insufficient evidence of the defendant’s personal knowledge of the lawfulness of the income tax code, even where his misunderstanding of the law was unreasonable. It’s a high bar.
In Hunter Biden’s case, it would be necessary to show that he was aware that his conduct violated the tax code.
In Hunter Biden’s case, it would be necessary to show that he was aware that his conduct violated the tax code, which, for many of us, can require tax preparers and accountants to sort through it. Perhaps that showing can be made easily in this case based on the evidence that has already been acquired. But I have sometimes found myself at odds with investigators who think they have built a solid case, only to have to explain to them that the law requires something more.
And even if sufficient evidence to prove the case has been gathered, the Justice Department’s inquiry does not end there. Once a prosecutor is satisfied that a case can be brought, the prosecutor must next determine whether a case should be brought. According to the Principles of Federal Prosecution, among the questions the prosecutor must ask are whether the charges would advance a substantial federal interest and whether adequate alternatives to criminal prosecution exist. Certainly, enforcing the nation’s tax laws are an important federal interest. If people are permitted to evade taxes, then our government will lack sufficient revenue to operate effectively. Prosecuting tax offenders is important to deter others from engaging in similar conduct. But in the tax realm, tax offenses are often handled through administrative or civil processes. The prosecutor would have to consider whether this case involves conduct that is appropriate for the heavy hammer of criminal prosecution or would be better handled as an administrative or civil matter. Considering how other offenders with similar conduct have been treated in the past would help to ensure uniformity in the exercise of discretion. A final consideration for the prosecutor is the requirement to treat Biden no better or worse than other offenders because of his relationship with the president. According to the Principles of Federal Prosecution, charging decisions may never be based on any political association. That means that Weiss cannot charge Hunter Biden because of his relationship with his father. Nor may he decline to file charges on that basis. The subject’s relationship with the president puts Weiss in the unenviable position of a Little League coach whose own child is on his team. Play him because he is the better player or bench him to prove how fair you are. Either choice subjects the coach to complaints from other parents or his own child. In the same way, regardless of his decision, Weiss can expect an outcry from one political party or the other. Former Attorney General Janet Reno used to say that she would be damned if she did or damned if she didn’t, so she might as well just do the right thing. Weiss would be wise to keep those words in mind as he makes his decision.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
